Citation Nr: 9819080
Decision Date: 06/23/98 Archive Date: 07/06/98
DOCKET NO. 94-33 797 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to an increased rating for post-traumatic stress
disorder, currently rated 10 percent disabling, including an
extraschedular rating under the provisions of 38 C.F.R.
§ 3.321(b)(1) (1997).
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Don Hayden, Counsel
INTRODUCTION
The veteran, who served on active duty from December 1965 to
December 1968 and continuously from March 1969 to May 1986
has appealed a February 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office in
Oakland, California (RO), which granted service-connection
and assigned a 10 percent rating for post-traumatic stress
disorder (PTSD).
The RO declined to refer this case to the VA Chief Benefits
Director, or the Director, Compensation and Pension Services,
for the assignment of an extraschedular rating under
38 C.F.R. § 3.321(b)(1).
CONTENTIONS OF APPELLANT ON APPEAL
In essence, it is contended by and on behalf of the veteran
that PTSD is more than 10 percent disabling. He says that he
is on medication for periods of depression and sleeplessness
and has daily intrusive thoughts of combat experiences. He
contends that his physician has recommended stronger
medication for his symptoms, that he is unable to work around
other people because of periods of depression and episodic
outbursts of anger and that he is socially reclusive and
tends to associate only with his immediate family.
The representative notes that the veteran has initial
insomnia “a couple of times a week” and nightmares three or
four times a month, many of which are about combat. It is
also noted that he attempted self-employment in automotive
service but failed and has worked as an independent trucker
which indicates that he cannot take supervision because of a
bad temper and potential for violence. It is also noted that
he has a short-term memory loss which requires him to write
everything.
DECISION OF THE BOARD
The Board of Veterans’ Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp.
1998), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
claim for an increased rating for PTSD.
FINDINGS OF FACT
1. As comtemplated by the rating criteria in effect prior to
November 7, 1996, PTSD produces no more than mild social and
industrial impairment.
2. As contemplated by the rating criteria effective November
7, 1996, PTSD results in no more than occupational and social
impairment due to mild or transient symptoms, which decrease
work efficiency and ability to perform occupational tasks
only during periods of significant stress.
3. The veteran is able to work full-time, 60 to 70 hours per
week, in competitive employment and his most recent Global
Assessment of Functioning (GAF) score is 68.
4. The case does not present an exceptional or unusual
disability picture with related factors such as marked
interference with employment or the need for frequent periods
of hospitalization as to render impractical the application
of the regular schedular standards.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for PTSD
have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991);
38 C.F.R. §§ 3.321(b)(1), 4.7, 4.126, 4.130, Diagnostic Code
9411 (1997), 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
This appeal for an increased evaluation is a continuation of
an initial claim in which service connection for PTSD was
granted, and it is well grounded. The VA has had the veteran
examined and he has indicated to the examiner that he is not
receiving treatment for PTSD. No additional evidence
pertinent to the veteran's claim has been identified.
Accordingly, the Board concludes that the VA has fulfilled
its duty to assist the veteran in developing the facts
pertinent to his claim. 38 U.S.C.A. § 5107(a).
Disability evaluations are intended to compensate for the
average impairment of earning capacity resulting from
service-connected disabilities, insofar as can practicably be
determined. They are primarily established by comparing
objective examination findings with the criteria set forth in
the Schedule for Rating Disabilities (Schedule). 38 C.F.R.
§ 4.1 (1997)
Factual Background
In April 1993, the veteran was seen at a VA outpatient
substance abuse treatment program for complaints of being
depressed, not sleeping well and drinking too much on a
sporadic basis. He had no history of psychiatric or
substance abuse treatment. In mid-May, he and the counselor
discussed his anti-depressant medication; it was noted that
he had been taking the medication on and off for about three
weeks. About a week later, it was noted that he was trying
to reduce his alcohol consumption to reduce his depression.
His mood was “still erratic,” depressed or agitated at
times.
During a September 1993 VA psychiatric examination, the
veteran reported that he had used alcohol excessively since
service and had had trouble with his marriage and the law
because of drinking. He reported being unable to sleep
without drinking, that his sleep was disturbed and that he
had nightmares. He startled easily and experienced
flashbacks and symptoms of hypervigilance. He carried a
weapon and slept with it, next to his bed. He had seen a
psychiatrist who prescribed amitriptyline, but he had
discontinued using it because of side effects. He had been
married four times and had been married to his current wife
for six years; he had retired from service after more than 20
years active duty. He had been in jail about four times for
drinking and disorderly conduct. He reported that he was
angry most of the time. His speech was spontaneous and
normal and his thought processes were logical and goal-
directed. He was oriented but immediate recall was impaired.
The Axis I diagnoses were PTSD and alcohol dependence. The
GAF score was 60.
During a November 1997 VA psychiatric examination, the
veteran indicated that he had received substance abuse
counseling, but denied any formal psychiatric treatment. He
reported that he had taken amitriptyline for two or three
days but he had discontinued using it. He had never been
hospitalized or taken any other psychotropic medication. He
drank up to eight cans of beer during the weekend, but did
not drink during the week. It was recorded that he was
living with his wife and that it was his second marriage. He
had completed two years of college and was close to an AA
degree. He had a 3.5 grade point average when he left
school. In 1994 or 1995 he had opened his own business in
the area of automotive service which failed after a year and
a half. He then took a truck driving course and was working
as a truck driver about 60 to 70 hours a week. He was doing
“local work” and made about eighty dollars per load. In
his leisure time he enjoyed reading, particularly science
fiction and historical books. He also enjoyed fishing but
did not have time for it.
The veteran felt nervous in small, enclosed spaces and tried
to avoid them. He knew that he had a bad temper and could be
violent, but had toned down to the point where he did not
look for trouble. He did, however, continue to feel
irritable and on edge, intermittently. He had initial
insomnia a couple of times a week but generally slept well.
He reported nightmares three or four times a month; the
content involved running over people or wrecking his truck
and about half the time he was wearing fatigues and had a
pistol strapped to his waist. On occasion, the dreams were
about combat. He said that he still flinched when exposed to
unanticipated sounds, but had no problem if the knew the
sound was coming. He did not like crowds and tried to get
out quickly when he went to the market. He did not like to
linger in restaurants and would sit near the door. He
reported that his concentration was generally good, but that
he had trouble with short term memory and had to write
everything down. He did not watch movies or talk about
Vietnam, and tried not to think about it; he did watch
documentaries and generally enjoyed them. He avoided Asians
and other veterans, except for one or two veterans with whom
he felt some intimacy. He reported that he was sometimes
depressed, but that, generally, it would last no more than
two or three days at a time. He denied feeling hopeless; he
had suicidal thoughts but did not believe that they were
serious. He had no plan and had had never made a suicide
attempt. He felt that his energy level was lower than usual
and he had felt more sleepy in the past several months than
usual. His initiative could be good if he were interested in
something, but he generally had no motivation if he was not
interested.
On examination, the veteran was dressed appropriately and was
moderately well groomed. His mood was somewhat irascible and
his affect was generally appropriate. He chuckled on several
occasions and laughed heartily once. There was no evidence
of sadness, tearing, anger or irritability. He was engaging
and appeared to have good object relations. His thought
processes were coherent and goal directed in response to the
examiner’s questions. He elaborated on his responses and was
spontaneous in his own thoughts. The examiner said that
though the veteran had intermittent suicidal thoughts, they
did not appear to be imminent and the veteran denied
homicidal thinking. He was oriented without evidence of
gross cognitive defect.
The examiner said that the veteran continued to have some
PTSD symptoms, occasional nightmares related to combat. He
gave a history of avoidant behavior and had some symptoms of
increased arousal, including hypervigilance in public. He
was not and had not been treated for PTSD; the VA outpatient
visits were for chemical dependency. He worked full-time 60
to 70 hours per week. The Axis I diagnoses were PTSD and
alcohol dependence, sustained partial remission. The Global
Assessment of Functioning (GAF) score was 68, the examiner
said that there was some difficulty in social and
occupational functioning due to PTSD.
The record also contains copies of counseling records from a
VA substance abuse program, dated in the mid-1990s.
Criteria
The criteria for rating PTSD were revised, effective November
7, 1996. 61 FR 52695, Oct. 8, 1996. Where a law or
regulation changes after a claim has been filed or reopened,
but before the administrative or judicial appeal process has
been concluded, the version more favorable to the appellant
applies, unless Congress provided otherwise or permitted the
Secretary to do so and the Secretary has done so. Marcoux v.
Brown, 9 Vet.App. 289 (1996); Karnas v. Derwinski, 1 Vet.App.
308, 313 (1991). No such provision exists with regard to
PTSD.
Post-traumatic stress disorder (PTSD) is primarily rated on
the impairment of earning capacity. 38 C.F.R. §§ 4.129,
4.132, Diagnostic Code 9411 (1996).
The current regulation provides that PTSD producing total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name is 100 percent
disabling. 38 C.F.R. § 4.130, Diagnostic Code 9411,
effective November 7, 1996.
When there is occupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships, it is 70 percent disabling.
Id.
When there is occupational and social impairment with reduced
reliability and productivity due to such symptoms such as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships, it is
rated 50 percent disabling. Id.
When there is occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, mild memory
loss (such as forgetting names, directions, recent events),
it is rated 30 percent disabling. Id.
When there is occupational and social impairment due to mild
or transient symptoms which decrease work efficiency and
ability to perform occupational tasks only during periods of
significant stress, or; symptoms controlled by continuous
medication), it is rated 10 percent disabling. When a mental
condition has been formally diagnosed, but symptoms are not
severe enough either to interfere with occupational and
social functioning or to require continuous medication), it
is rated 0 percent disabling. Id.
Under the pre-November 7, 1996, criteria, PTSD is rated
100 percent disabling when the attitudes of all contacts,
except the most intimate, are so adversely affected as to
result in virtual isolation in the community and there are
totally incapacitating psychoneurotic symptoms bordering on
gross repudiation of reality with disturbed thought or
behavioral processes associated with almost all daily
activities such as fantasy, confusion, panic and explosions
of aggressive energy resulting in profound retreat from
mature behavior; the person is demonstrably unable to obtain
or retain employment. It is rated 70 percent disabling when
the ability to establish or maintain effective or favorable
relationships with people is severely impaired and the
psychoneurotic symptoms are of such severity and persistence
that there is severe impairment in the ability to obtain or
retain employment. It is 50 percent disabling when the
ability to establish or maintain effective or favorable
relationships with people is considerably impaired and by
reason of psychoneurotic symptoms, the reliability,
flexibility and efficiency levels are so reduced as to result
in considerable industrial impairment. It is 30 percent
disabling when there is definite impairment in the ability to
establish or maintain effective or favorable relationships
with people and the psychoneurotic symptoms resulted in such
reduction initiative, flexibility, efficiency and reliability
as to produce definite industrial impairment. It is rated 10
percent disabling when less than that warranting 30 percent
when there is emotional tension or other evidence of anxiety
productive of mild social and industrial impairment.
38 C.F.R. § 4.132, Diagnostic Code 9411, in effect prior to
November 7, 1996.
In Hood v. Brown, 4 Vet.App. 301 (1993), the United States
Court of Veterans Appeals stated that the term "definite" in
38 C.F.R. § 4.132 was "qualitative" in character, whereas the
other terms were "quantitative" in character and invited the
Board to "construe" the term "definite" in a manner that
would quantify the degree of impairment for the purposes of
meeting the statutory requirement that the Board articulate
"reasons or bases" for its decision. 38 U.S.C.A.
§ 7104(d)(1) (West 1991). In a precedent opinion dated
November 9, 1993, the General Counsel of the VA concluded
that "definite" is to be construed as "distinct, unambiguous,
and moderately large in degree." It represents a degree of
social and industrial adaptability that is "more than
moderate but less than rather large." VAOGCPREC 9-93
(November 9, 1993). The Board is bound by this
interpretation of the term "definite." 38 U.S.C.A.
§ 7104(c).
Analysis
Mental disorders are rated on the frequency, severity, and
duration of psychiatric symptoms, the length of remissions,
and the veteran's capacity for adjustment during periods of
remission. The rating should be based on all the evidence of
record that bears on occupational and social impairment
rather than solely on the examiner's assessment of the level
of disability at the moment of the examination. The rating
should consider the extent of social impairment, but should
not be assigned solely on the basis of social impairment.
38 C.F.R. § 4.126.
Where entitlement to VA compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a review of the recorded history of a disability is
necessary in order to make an accurate evaluation, see 38
C.F.R. §§ 4.41, 4.42 (1997), the regulations do not give past
medical reports precedence over current findings. See
Francisco v. Brown, 7 Vet.App. 55 (1994).
The most recent evidence of the veteran’s psychiatric status
is the November 1997 VA examination report. At that time, he
was dressed appropriately and was moderately well groomed.
Although his mood was somewhat irascible, he was engaging and
appeared to have good object relations. He displayed no
sadness, tearing, anger or irritability. The veteran
described himself as having a bad temper and being
potentially violent, but he reported being able to control
his temper. He also reported being intermittently irritable
and on edge. His PTSD symptoms consisted mainly of
occasional nightmares and some symptoms of increased arousal,
including moderate hypervigilance when in public. However,
he has been able to satisfactorily perform college work and
at the time of the examination was employed full-time,
working 60 to 70 hours per week driving a truck. The veteran
reported that he enjoyed reading and fishing, although he did
not have sufficient time for the latter. The examiner found
that the veteran’s GAF score was 68. The veteran was
furnished a copy of the GAF Scale with the January 1998
supplemental
statement of he case. A score between 61 and 70 indicates
some mild symptoms or some difficulty in social and
occupational functioning, but generally functioning pretty
well.
Under the “old” criteria, a 30 percent disability rating
requires definite impairment in the ability to establish or
maintain effective or favorable relationships with people and
such reduction initiative, flexibility, efficiency and
reliability, as a result of the psychoneurotic symptoms to
produce definite industrial impairment. “Definite” has
been defined as moderately large. While the veteran
experiences some social and industrial impairment as a result
of PTSD, it is not shown to be moderately large. For
example, his ability and willingness to work 60 or more hours
reflect good initiative, efficiency and reliability.
Moreover, he had achieved a 3.5 grade point average while
attending junior college. Although he reported that he did
not have much motivation if he was not interested in
something, his work regimen and school performance attest to
his ability to function well. Accordingly, and in view of
the most recent GAF score of 68, it is concluded that the
pre-November 7, 1996, criteria for a rating in excess of 10
percent for PTSD have not been met or more nearly
approximated as the veteran does not experience definite
(moderately large) social and industrial impairment.
Under the “new” criteria, a 30 percent disability rating
requires occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although generally
functioning satisfactorily, with routine behavior, self-care,
and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events). The evidence
does not show that the veteran has panic attacks or chronic
sleep impairment. Although he has some insomnia, he is
generally able to sleep well. He reported periods of
depression which last no more than a few days. Impairment of
immediate recall was noted by the examiner on the 1993
examination and was listed as a subjective complaint on the
1997 examination. However, the examiner did not report
impairment of immediate recall
on the 1997 examination. The veteran did not report any
occupational impairment from any deficit in immediate recall,
such as forgetting where to make deliveries. He reported that
he was sometimes depressed, but generally the depression
would not last more than two or three days. He denied
feeling hopeless and, although he reported having suicidal
thoughts, he had no plan for suicide and had never made a
suicide attempt. The veteran’s assertion that he is on
medication, which his doctor has recommended, be increased is
not confirmed by either medical histories or outpatient
treatment records. Therefore, the Board finds that the PTSD
symptoms do not more nearly approximate the revised criteria
warranting a 30 schedular percent rating.
To accord justice to the exceptional case where the schedular
evaluations are found to be inadequate, the VA Under
Secretary for Benefits or the Director, Compensation and
Pension Service, upon field station submission, is authorized
to approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities. The governing
norm in these exceptional cases is: A finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1). In this case, the
veteran has not undergone frequent periods of hospitalization
for PTSD and apparently is receiving outpatient treatment for
substance abuse rather than PTSD. After his automobile
service business closed, he was able to retrain and has been
working from 60 to 70 hours a week as a truck driver.
Therefore, the Board finds that referral for an extra-
schedular evaluation is not warranted, since the case does
not resent an exceptional or unusual disability picture.
ORDER
An increased rating for PTSD is denied.
JANE E. SHARP
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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